CANCELLED_The Right to Life in Domestic Abuse Cases: Approaches of the European Court of Human Rights

Dr. Ronagh McQuigg is currently a Senior Reader (being promoted to Reader in August 2023) in the School of Law, Queen’s University Belfast (QUB), Northern Ireland. She holds a LL.B, a LL.M. in Human Rights Law and a Ph.D., and she joined the staff of the School of Law, QUB, in 2009. She is a qualified solicitor and a Senior Fellow of the Higher Education Academy, and she holds a Postgraduate Certificate in Higher Education Teaching. Her research interests are in the area of international human rights law, with a particular focus on domestic abuse as a human rights issue. She has published five sole-authored books, the two most recent being 'Criminal Justice Responses to Domestic Abuse in Northern Ireland' (2022, Routledge) and 'The European Convention on Human Rights and the COVID-19 Pandemic' (2024, Routledge), and she has also published widely in international peer-reviewed journals. She currently teaches in the areas of Family Law and Property Law. 

The Grand Chamber of the European Court of Human Rights (ECtHR) issued its first judgment in a case focusing on domestic abuse in Kurt v Austria (app. no. 62903/15, judgment of 15 June 2021). This judgment is of great significance to the development of the Court’s jurisprudence on this issue. In its judgment, the  Grand Chamber set out in detail a number of principles which should henceforth be applied by the Court when addressing the positive obligations of states as regards the right to life, found in Article 2 of the European Convention on Human Rights, in the context of domestic abuse. This presentation would seek to  analyse the Grand Chamber’s judgment and the extent to which it has impacted upon the approach of the ECtHR in subsequent domestic abuse cases involving alleged violations of Article 2. 

In Kurt v Austria, the applicant alleged that the state authorities had failed in their obligations to protect herself and her children from being subjected to violence by her husband, which had resulted in the death of her son. A key question for the Grand Chamber in Kurt was how the ‘Osman test’ should apply in  domestic abuse cases. This test was formulated by the ECtHR in Osman v United Kingdom (app. no. 23452/94, judgment of 28 October 1998). Osman did not involve domestic abuse, however at issue in this case was the question of in what circumstances state authorities could be held liable for failing to take  appropriate measures to protect the right to life of an individual from a risk posed by another private individual. The Court stated (at para. 116) that, for such a positive duty to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Since the decision in Osman, this statement has been frequently cited in cases in which it has been alleged that state authorities have failed to fulfil their positive obligations to protect the right to life of individuals from threats posed by other individuals, including in cases in which victims have been killed by perpetrators of domestic abuse. However, there were difficulties with applying the Osman test to domestic abuse cases, particularly regarding the requirement for the authorities to know or ought to know of the existence of an ‘immediate risk’ to the life of an individual in order for their duties to be engaged. Essentially, domestic abuse rarely consists of a single incident, but usually comprises an on-going cycle. Thus even if a risk to life does not appear to be immediate, there is a considerable possibility that  this could escalate at any point. For the state to be under a duty to take preventive operational measures to protect the right to  life only when there appears to be an ‘immediate risk’ in the traditional interpretation of this term may not be sufficient to protect the right to life in a domestic abuse context.

However, the Grand Chamber’s judgment in Kurt settles the questions which had arisen regarding how the ‘Osman test’ should be applied in cases involving domestic abuse. It is now beyond doubt that, although the Osman test should still be used in domestic abuse cases, it must be applied in such a manner as to take account of the specific circumstances of such abuse, a recognition which is to be welcomed. It seems from the judgments which have since been issued by the ECtHR that henceforth the principles set out by the Grand Chamber will generally be followed closely by the Court in domestic abuse cases involving the right to life, thus leading potentially to a more uniform approach being taken by the ECtHR in its consideration of such cases. Also, the application of these principles could lead to the Court finding violations of the right to life in circumstances in which it would not otherwise have done so, as may have been the case in Y and Others v Bulgaria (app. no. 9077/18, judgment of 22 March 2022), in which the ECtHR found that the police response to a situation involving domestic abuse had been insufficient.